May 10, 2023
Following is an excerpt from the book “Medical Malpractice In Health Law.”
A physician has a duty to treat his patient skillfully. However, his skill in diagnosis and therapy is not the full test of his responsibility. The prudent doctor, is charged with the obligation to divulge important information to the patient as required under reasonable care guidelines. The moment a physician begins to treat a patient or agrees to assume the duty of caring for the patient, he is under a contract written or implied to exercise due care. This is true except in emergency or gratuitous situation.
A physician must inform the patient about any limitations observed for his welfare, and as to any precaution and therapy the patient should seek in the future. The prudent doctor has a duty to advise the patient on alternative treatment or medicine promising greater results than one pursued, and he must warn the patient of any risks to his well-being which contemplated therapy may involve. 
For 180 years following the founding of the United States, physicians were sometimes sued for medical malpractice. Allegations of negligence were errors of commission- i.e., when the physician made a mistake by doing something wrong, usually mistreatment of a fracture or dislocation, a complication or death following a surgical procedure, prescribing the wrong medication, and after the discovery of the X-ray by Roentgen in 1895, causing radiation burns. 
The principle that one who enters into the learned profession, undertakes to bring with it the exercise of a reasonable degree of care and skill, can be traced back to the law of ancient Rome and England. Writings of medical responsibility, dates back to 2030 BC when the code of Hammurabi provided that “If the doctor has treated a gentleman with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hand.” 
The Roman law recognized medical malpractice as a genuine cause of action. Around 1200 AD, Roman law extended to continental Europe, after which the English common law came into being with the Norman conquest of 1066. At the close of the 12th Century during the reign of Richard Cocur de Lion, records were kept in the Court of Common Law and the Plea Rolls which provide a series of medical malpractice decisions, all the way to modern times. For example, “an early medical malpractice case in England, held that a servant and his master could sue for damages against a physician who treated the servant and made him more ill by using “unwholesome medicine.” 
The number of malpractice lawsuits increased at a geometric rate beginning in the 1960s, and in the 1970s, physicians began to practice defensive medicine and as a result, many doctors order “unnecessary radiology exams and tests,” as preventive measure against malpractice claims. Today, the number of malpractice suits are decreasing, while the practice of defensive medicine continued causing the rise of unnecessary exams and tests that increase the likelihood of “overdiagnosis and overtreatment,” a new kind of error of commission. 
In a survey of high-risk specialists in the state of Pennsylvania, research show that 90% practice defensive medicine, while over ordering of diagnostic tests like CT, MRI, and radiography that were not clinically necessary accounted for more than half of the cases among emergency physicians, orthopedic surgeons and neurosurgeons… some radiologists reported referring patients with ambiguous mammograms for surgical biopsy, and ordering close-up repeat imaging of low risk abnormalities on chest radiographs. 
A different survey of more than 1200 doctors across a range of all medical specialties, also revealed that 91% ordered more tests and procedures than needed in an attempt to prevent malpractice suits. 
A legal researcher writing in the University of Chicago Law Review analyzed malpractice litigation data and found that most physicians would rather overtreat their patients, because the consequences of ordering unnecessary medical tests and treatments are far less severe than that of failing to do so. 
In medical practice, there are accepted norms or standards of care required of a doctor in the treatment of his or her patients. Medical malpractice occurs when a healthcare provider deviates from the accepted standard of care, resulting in injury or harm to a patient. In order for a plaintiff’s action to be successful in a malpractice claim, there are several key elements that must be proven.
First, there must be a duty of care owed by the healthcare provider to the patient. This means the provider has a legal responsibility to provide care that meets certain standards. This duty of care is created by a doctor-patient relationship established the moment a doctor, begins to treat a patient irrespective, of the length of time the patient has been in the care of such provider.
Second, there must be a breach of that duty of care. a breach of duty occurs whenever a physician’s practice has failed to meet the required standard of care. This can happen when a healthcare provider makes a mistake or fails to follow accepted medical protocols. A provider who breaches such duty is said to be negligent.
Third, there must be an injury or harm caused by the breach of duty of care. This can include physical injury, emotional distress, or even death. Standing alone, a breach of standard of care that does not affect quality of life, is not actionable unless it causes injury to the patient. This is referred to as actual damage without which the malpractice suit fails.
Fourth, there must be a proof of causation also known as cause in-fact or actual cause. A plaintiff (patient) claiming negligence by a healthcare provider must prove not only that the patient, suffered legally recognized harm, but also that the harm was in fact, caused by the healthcare provider. That is, ‘but-for’ the negligent act, the injury would not have occurred.
Finally, there must be a proof of proximate cause or a causal link between the breach of duty of care and the injury or harm suffered by the patient. This means there must be a direct connection between the provider’s negligence and the injury or harm to the patient. The court will not find for a patient when the harm caused, was not the kind that led to a finding of negligence.
Once these elements are established, the healthcare provider may use a variety of defenses in an attempt to avoid liability. One common defense is that the injury or harm suffered by the patient was not caused by the healthcare provider’s actions, but rather by a pre-existing condition or other factors. Also, where no doctor-patient relationship exists, the provider may claim there is no duty of care to the patient.
Another defense is that the healthcare provider did not breach any duty of care and was not negligent, but rather acted in accordance with the standard of care. If proven that no breach occurred, the provider has a defense to a malpractice action by the patient.
In addition, the healthcare provider may also argue that the patient assumed the risk of injury or harm by consenting to a particular treatment or procedure. A proof of informed consent by the healthcare provider, will be a defense to a malpractice suit where there is no underlining negligence by the doctor.
A patient’s contributory negligence is also a defense, where based on evidence, it is established that the patient’s action or inaction is a contributory factor to the harm suffered. This may include a patient’s failure to follow treatment guidelines or instructions by the healthcare provider.
Finally, healthcare providers may also argue that the statute of limitations, which is the time limit within which a medical malpractice claim must be filed, has expired. A lapse of the statute of limitations is a defense to a malpractice action if proven that the patient, failed to bring the lawsuit within the time frame stipulated by state statute.
There is a chapter in the book dealing with bioethics on the issue of abortion, the origin of the brain death phenomenon and the constitutionality of the right to die. Can the physician play a role in the end of life or assisted suicide? When does life begin? What is brain death? and how do you define death? These questions among other ethical issues are discussed in the book.
Overall, medical malpractice claims can be complex and require an understanding of the legal elements and defenses involved. This preview highlights the main points of a textbook on the subject, but please note that the book covers more specific and detailed information on the topic. Included in the book are court cases with extensive analysis of both State and Supreme Court opinions on malpractice lawsuits involving providers and their patients. There are also numerous thought provoking essay and multiple choice questions for the readers to practice. An answer key for the multiple choice questions is included.
For a copy, the book is available on Amazon and Barnesandnoble you can also purchase from other online retail outlets.
- Adeyemi Oshunrinade, Informed Consent: Physician-Patient Relationship as a Contractual Obligation (2014); ref. Johnson v. Kokemoor, 199 W.2d 615, 545 N.W.2d 495 (1996).
- Leonard Berlin, Medical Errors, Malpractice and Defensive Medicine, August 14, (2017)
- Powis Smith JM. Origin & History of Hebrew Law. Chicago IL: University of Chicago Press; 1931.
- Everad v. Hopkins, 80 English Reports 1164 (1615)
- Leonard Berlin, ibid.
- Studdert DM, Mello MM, Sage WM, DesRoches CM, Peugh J, Zapert K, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment, J Am. Med Assoc. 2005; 293(21),2609-17.
- Bishop TF, Federman AD, Keyhani S. Physicians’ views on defensive medicine: a national survey. Arch of Intern Med 2010; 170(12): 1081-1083.
- Berlin at 135 ref. Frakes MD, The surprising relevance of medical malpractice law. U Chi l. Rev. 2015; 82:1-572
Adeyemi Oshunrinade is the author of “Medical Malpractice in Health Law.” He also wrote “Wills Law and Contests,” Constitutional Law-First Amendment, “Criminal Law-Homicide” and other publications available on Amazon. Follow on Twitter @san0670.
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